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2020 DIGILAW 539 (RAJ)

National Insurance Co. Ltd. v. Narbada

2020-05-30

PRAKASH GUPTA

body2020
JUDGMENT 1. This Civil Misc. Appeal has been filed by the appellant against the judgment dated 17.12.1993 passed by the Motor Accident Claims Tribunal (1st), Ajmer (hereinafter referred to as ?the Tribunal?) in Claim Case No. 03/1990, whereby the learned Tribunal awarded a sum of Rs. 2,77,680/- as compensation in favour of the claimants alongwith interest @ 15% p.a. w.e.f. 2.1.1990 till realization. 2. Brief facts giving rise to the present appeal are that Dy. Commissioner of Income Tax, Jodhpur was transferred to Bhopal. Deceased Jaswant Singh, who was an employee in the Income Tax Department, was transporting the goods belonging to Dy. Commissioner, Income Tax Department in Truck bearing No. RPK 621 alongwith one Tara Chand. On 1.7.1989, about 7 kms. away from Nasirabad, driver of the aforesaid Truck drove it rashly and negligently, as a result of which the truck went off the road and collided with the tree. Owing to the accident, Jaswant Singh succumbed to the injuries on 16.7.1989. The claimants of the deceased Jaswant Singh filed a claim petition before the Tribunal. Summons were issued. The non claimants except non claimant no.2 i.e., owner of the offending vehicle had put appearance. Issues were framed. After hearing the parties, the Tribunal, vide its judgment dated 17.12.1993, awarded a sum of Rs. 2,77,880/-as compensation in favour of the claimants alongwith interest @ 15% w.e.f. 2.1.1990 till its realization. Hence, the present appeal. 3. Learned counsel for the appellant Insurance Co. submits that the deceased Jaswant Singh was a paid employee of the Income Tax Department posted as "Waterman" and was on duty at Jodhpur on the date of accident. The department has separate staff dealing with loading and unloading of goods. Deceased Jaswant Singh was neither directed by the Department to travel in the truck for any purpose nor was he in the employment of truck owner / goods owner. He further submits that Mr. Ashwani Kumar, owner of the goods neither appeared in the witness box nor stated that the deceased Jaswant Singh was his representative. The services of the deceased were also not utilized for hire or reward by the Truck / Goods Owner. Thus, it is amply clear that the deceased Jaswant Singh was a gratuitous passenger whose liability is excluded / not covered under the Insurance Policy. Hence, the Insurance Co. The services of the deceased were also not utilized for hire or reward by the Truck / Goods Owner. Thus, it is amply clear that the deceased Jaswant Singh was a gratuitous passenger whose liability is excluded / not covered under the Insurance Policy. Hence, the Insurance Co. is not liable to pay the compensation and thus, the impugned award is liable to be quashed and set-aside. 4. In support of his contentions, he has placed reliance on the following judgments: i) New India Assurance Co. Ltd. Versus Kanchan Bewa & Ors. reported in 1994 ACJ 138 ii) Mallawwa (Smt.) and others Versus Oriental Insurance Co. Ltd. and Ors. reported in (1999) 1 SCC 403 . iii) New India Assurance Co. Ltd. Versus Asha Rani and others reported in (2003) 2 SCC 223 . Per Contra, learned counsel for the claimants supported the impugned judgment and award. Heard. Considered. 5. The Tribunal while passing the impugned judgment and award relied on the judgment passed by the Full Bench of this Court reported in 1985 RLR 635 (Raj.). The said judgment passed by the Full Bench of this Court has been overruled by the Hon'ble Apex Court in the case of Mallawwa (Smt.) and Others Versus Oriental Insurance Co. Ltd. and Others reported in (1999) 1 SCC 403 , wherein in sub-para 23 of para 10, Their Lordships of the Apex Court observed as under: "23. There is another aspect of the matter which had led us to differ from the Full Bench decision of the Rajasthan High Court. The same is what finds place in sub-section (2) of Section 95. That sub-section specifies the limits of liability and clause (a) deals with goods vehicle; and insofar as the person traveling in goods vehicle is concerned it has confined the liability to the employees only. This is an indicator, and almost a sure indicator, of the fact that the legislature did not have in mind carrying of either the hirer of the vehicle or his employee in the goods vehicle, otherwise, clause (a) would have provided a limit of liability regarding such persons also." 6. This is an indicator, and almost a sure indicator, of the fact that the legislature did not have in mind carrying of either the hirer of the vehicle or his employee in the goods vehicle, otherwise, clause (a) would have provided a limit of liability regarding such persons also." 6. In the case of Kanchan Bewa (supra), it was held by the Orissa High Court that unless a vehicle is meant for carrying passengers for hire or reward or the said vehicle, by reason of or in pursuance of contract of employment, is required to cover the liability in respect of death of or bodily injury to persons being carried in or upon, the insurer will not be liable to pay the compensation. 7. In the case of Asha Rani & Ors. (supra), their Lordships of the Apex Court observed that even if the widest interpretation is given to the expression "to any person", it will not cover either the owner of the goods or his authorized representative being carried in the vehicle. 8. While adverting to the facts of the instant case, it is noticed that the services of the deceased were not utilized for hire or reward by the truck owner / goods owner and he was a gratuitous passenger in the goods vehicle, whose liability was not covered under the Insurance Policy. In this view of the matter, the Insurance Co. was not liable to pay the compensation. 9. For the aforesaid reason, the appeal filed by the Insurance Co. deserves to be allowed, which stands allowed and the Insurance Co. is absolved from its liability to pay the compensation. The impugned judgment and award dated 17.12.1993 passed by the Tribunal stands modified accordingly.